“unreasonable” - the often admitted term
and it IS a qualifying term
and all Scalia is saying he is not sure he, or the Court, really know what is “unreasonable” (searches and seizures) in “the NSA stuff”
it is also Scalia’s way of saying that IF it is agreed by enough of us that it is “unreasonable” then would not legislation be the way to say that
it is also Scalia’s way of saying that IF it is agreed by enough of us that it is “unreasonable” then would not legislation be the way to say that
In other words: "I don't now what "unreasonable" means in this context. Please define it for me, legislature."
Scalia is punting, not doing his job as one of the three branches of government.
The Court has not previously hesitated to rule on questions of national security. This is not to advocate an activist Court, just one that does its constitutional job. Its role is to decide what is "reasonable."
Clearly, you get it.
The author grabbed one small portion of what Scalia said on the subject and used it as chum. Scalia also said:
“The institution that will decide that is the institution least qualified to decide it. We know nothing about the degree of the risk. The executive knows. The Congress knows. We don’t know anything, and we’re going to be the one to decide that question?”
SCOTUS shouldn’t have to balance an unspecified risk against an intrusion upon our 4th Amendment right. Congress should have explicitly narrowed the power it was granting because as we all know, unlimited scope always leads to broad interpretations of permissibility.
The unreasonable search and seizure isn’t the relevant provision; the ban on general warrants is, and that is unambiguous, and absolute.